IN THE SUPREME COURT OF OHIO Todd L. Leopold, et al. Appellees, V. Ace Doran Rigging & Hauling Co., et al. Appellants. On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. 97277 Trial Court Case No. CV-708330 NOTICE OF APPEAL OF APPELLANT, DANIELLE LAURENCE Phillip J. Weaver, Jr. (0025491) Smith, Marshall, LLP 1425 Superior Bldg. 815 Superior Ave. Cleveland, OH 44114 (216) 781-4994 (Fax) 781-9448 Counsel for Appellee/Plaintiff Kenneth P. Abbamo, Esq. Reminger Co., L.P.A. 1400 Midland Bldg. 101 Prospect Ave., West Cleveland, OH 44115-1093 (216) 687-1311 (Fax) 687-1841 Attorneys for Appellee Stillwagon and Ace Doran Defendants VED MAR 1 5 2012 Shannon J. George (0068375) Ritter, Robinson, McCready & James, Ltd. 405 Madison Ave., Suite 1850 Toledo, Ohio 43604 (419) 241-3213 (Fax) 241-4825 Counsel for Appellant, Danielle Laurence Bruce S. Goldstein, Esq. Bruce S. Goldstein Co., L.P.A. 1009 Ledgewood Trail Lyndhurst, OH 44124-1070 (440) 442-0022 (Fax) 442-0088 Counsel for_Annellant Danielle Laurence MAR 1 5 2012 CLERK pF CQURT SUPRIDME COURT OF OHIO f".I rPtt rlFC:f111RT
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IN THE SUPREME COURT OF OHIO
Todd L. Leopold, et al.
Appellees,
V.
Ace Doran Rigging & Hauling Co., et al.
Appellants.
On Appeal from the Cuyahoga CountyCourt of Appeals, Eighth AppellateDistrict
Court of Appeals Case No.97277
Trial Court Case No. CV-708330
NOTICE OF APPEAL OF APPELLANT, DANIELLE LAURENCE
Phillip J. Weaver, Jr. (0025491)Smith, Marshall, LLP1425 Superior Bldg.815 Superior Ave.Cleveland, OH 44114(216) 781-4994(Fax) 781-9448Counsel for Appellee/Plaintiff
Shannon J. George (0068375)Ritter, Robinson, McCready & James, Ltd.405 Madison Ave., Suite 1850Toledo, Ohio 43604(419) 241-3213(Fax) 241-4825Counsel for Appellant, Danielle Laurence
Bruce S. Goldstein, Esq.Bruce S. Goldstein Co., L.P.A.1009 Ledgewood TrailLyndhurst, OH 44124-1070(440) 442-0022(Fax) 442-0088Counsel for_Annellant Danielle Laurence
MAR 1 5 2012
CLERK pF CQURTSUPRIDME COURT OF OHIO
f".I rPtt rlFC:f111RT
Barbara A. Lum, Esq.Thompson Hine LLP3900 Key Center, 127 Public Sq.Cleveland, OH 44114-1291Counsel for Appellee Ford Motor Co.
Donald Drinko, Esq.1501 Euclid Ave.Sixth Floor, Bulkley Bldg.Cleveland, OH 44115Counsel for Appellee American Fire & Casualty Co.
P. J. Malnar, Esq.55 Public Sq., Suite 725Cleveland, OH 44113Counsel for Appellee The Netherlands Insurance
Notice of Appeal of Appellant, Danielle Laurence
Appellant, Danielle Laurence hereby gives notice of her appeal to the Supreme Court of
Ohio from the judgment and accompanying Journal Entry and Opinion of the Cuyahoga County
Court of Appeals, Eighth Appellate District, entered in the case of Todd A. Leonold, et al. v. Ace
Doran Hauling & Rigging Co., et al., Court of Appeals Case Number 97277, resulting in the
attached Journal Entry and Opinion dated February 9, 2012.
This case raises a conflict between appellate districts, involves a substantial constitutional
question and is one of great general interest.
Respectfully Submitted,Shannon J. GeorgeCounsel of Record
COUNSEL FOR^6P`PELLANT,DANIELLE LAURENCE
CERTIFICATE OF SERVICE
This is to certify that a true and accurate copy of the foregoing Notice of appeal was sentto the following parties or their counsel of record this 14`h day of March, 2012, by regular U.S.Mail, with proper postage affixed:
Phillip J. Weaver, Jr., Esq.Smith, Marshall, LLP1425 Superior Bldg.815 Superior Ave.Cleveland, OH 44114Attorney for Appellees Todd Leopold, et al.
Kenneth P. Abbamo, Esq.Reminger Co., L.P.A.1400 Midland Bldg.101 Prospect Avel., WestCleveland, OH 44115-1093Attorneys for Stillwagonand Ace Doran Defendants/Appellees
Barbara A. Lum, Esq.Thompson Hine LLP3900 Key Center, 127 Public Sq.Cleveland, OH 44114-1291Attorney for Appellee Ford Motor Co.
Donald Drinko, Esq.1501 Euclid Ave.Sixth Floor, Bulkley Bldg.Cleveland, OH 44115Attorney for Appellee American Fire & Casualty Co.
P. J. Malnar, Esq.55 Public Sq., Suite 725Cleveland, OH 44113Attorneyfor Appellee The Netherlands Insurance
Bruce S. Goldstein, Esq.Bruce S. Goldstein Co., L.P.A.1009 Ledgewood TrailLyndhurst, OH 44124-1070Attorney for Appellant Danielle Laurence
'%'C.ourt of Zfppear'q oEIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINIONNo. 97277
TODD L. LEOPOLD, ET AL.
PLAINTIFFS-APPELLEES
vs.
ACE DORAN HAULING & RIGGING CO., ET AL.
DEFENDANTS-APPELLEES
[APPEAL BY DANIELLE LAURENCE]
JUDGMENT:AFFIRMED
, Civil Appeal from theCuyahoga County Court of Common Pleas
Case No. CV-708330
BEFORE: Rocco, J., S. Gallagher, P.J., and Keough, J.
RELEASEDAND JOURNALIZED: February 9, 2012
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ATTORNEYS FOR APPELLANTS
For Danielle Laurence
Shannon J. GeorgeRitter, Robinson, McCready & James, Ltd.405 Madison Ave., Suite 1850Toledo, Ohio 43604
Bruce S. GoldsteinBruce S. Goldstein Co., L.P.A.1009 Ledgewood TrailLyndhurst, Ohio 44124-1070
ATTORNEYS FOR APPELLEES
For Todd L. Leopold, et al.
Philip J. WeaverSmith Marshall LLP1425 Superior Bldg.815 Superior AvenueCleveland, Ohio 44115
For Ace Doran Hauling & Rigging Co., et aLFor Stillwagon, et al.
Brian D. Sullivan, Esq.Kenneth P. AbbarnoReminger Co., L.P.A.1400 Midland Building101 Prospect Avenue WestCleveland, Ohio 44115-1093
For American Fire & Casualty Co.
Donald G. Drinko1501 Euclid AvenueSixth Floor Buckley BuildingCleveland, Ohio 44115
i^lLED AND JOURNALIZEDPER APP.R. 22(O)
FEB 0 9 2012
0 E. FUERST!IE OOU'RT OF APPL•AGe
. DER
For Ford Motor Co.
Barbara A. LumThompson Hine LLP3900 Key Center127 Public SquareCleveland, Ohio 44114
For The Netherlands Insurance Co.
Patti Jo MalnarLaw Offices of John Rasmussen55 Public SquareSuite 725Cleveland, Ohio 44113
-1-
KENNETH A. ROCCO, J.:
Defendant-appellant Danielle Laurence appeals the trial court's order
that denied her motion for a protective order. This matter is before this court
on an interlocutory appeal filed pursuant to R.C. 2505.02(B)(4), with "the sole
issue [being] whether the trial court's order involves the disclosure of privileged
information contrary to the law." Medina v. Medina Gen. Hosp., 8th Dist. No.
96171, 2011-Ohio-3990, ¶ 1, 7; see also Hartzell v. Breneman, 7th Dist. No. 10
MA 67, 2011-Ohio-2472; compare Viafora u. Suhail, l lth Dist. No. 2010-G-2987,
2010-Ohio-5796.
The underlying matter is a personal injury action originally filed in
October 2009, by plaintiffs-appellees Todd Leopold and his wife. The suit
results from a multi-vehicle accident that occurred on March 6, 2008. The
Leopolds named numerous defendants, including Laurence, who was driving
one of the cars involved. Laurence and some of the other defendants
subsequently filed cross-claims against each other, seeking contribution or
indemnification should the plaintiffs prevail.
In April 2011, after the Leopolds had filed their third amended complaint,
Laurence filed her motion seeking a protective order pursuant to Civ.R. 26(C).
She sought to preclude "counsel for any party to this litigation from utilizing
[her] medical records [resulting from the accident] * * * for any purpose,
-2-
including at any deposition of any party or witness, in any motions for judgment
on the pleadings, at trial or in any other proceeding ***." In her brief in
support of her motion, Laurence acknowledged the following facts.
After the accident, Laurence had made statements to emergency room
medical personnel that suggested she may have caused the accident. In
November 2008, Laurence had commenced a personal injury action, viz., Case
No. CV-676218, which was based upon the accident, against Stephen Stillwater
and Ace Doran Hauling and Rigging Co. (hereinafter, referred to in the singular
as "Ace"), two defendants whom the Leopolds alsohad named in the instant
action. In responding to Ace's requests for discovery in her case, Laurence had
turned over her,statements. Laurence subsequently dismissed her case. By the
time she filed her motion seeking a protective order in this case, the statute of
limitations barred her from refiling CV-676218.
In this case, Leopold argued with respect to her request for a protective
order that her waiver of her "physician-patient privilege" in her previous action
did not extend to the current case. She further argued that some of the
information she provided to the medical personnel might be used by the other
parties in this case for improper purposes.
Ace filed a brief in opposition to Laurence's motion. Therein, Ace argued
that Laurence's request should be denied because she had not complied with
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Civ.R. 26(C)'s prerequisites and that her request was overbroad. Ace also
argued that Laurence's statements concerning the cause of the accident did not
fit within the protection of the physician-patient privilege. The Leopolds later
joined in Ace's opposition to Laurence's Civ.R. 26(C) motion.
Laurence filed a reply brief, to which Ace filed a responsive brief. In this
brief, Ace essentially argued that Laurence had waived her privilege with
respect to the statements when she made them in sworn testimony "in the
context of her personal injury action."
On August 15, 2011, the trial court denied Laurence's motion for a
protective order without opinion.
Laurence's appeal of the trial court's order presents one assignment of
error,' in which she challenges the trial court's order as denying her the
protection of physician-patient privilege in violation of R.C. 2317.02(B). Ace, on
the other hand, argues that the information Laurence seeks to protect does not
fall under the statute's proscription, because Laurence waived her privilege
when she filed her action in Case No. CV-676218.
The burden of showing that testimony and documents are either
confidential or privileged rests upon the party seeking to exclude it. Lemley v.
'Laurence's assignment of error states: "The trial court erred in denyingAppellant's motion for a protective order, as Danielle Laurence did not waive anymedical privilege which would permit the use of her medical records in this case."